U.S. opposes new Uighur plea

Posted Sat, February 12th, 2011 2:56 am by Lyle Denniston

The Justice Department, seeking to head off a new review by the Supreme Court of the fate of five Chinese Muslim Uighurs being held at Guantanamo Bay, has argued that their case raises no significant legal issues, because they will be free to leave the U.S. facility in Cuba any time they are willing to be resettled to another country chosen through U.S. diplomatic negotiations. The Court had once before agreed to decide the case, but did not do so, and now, the Department contended in a new filing Wednesday, the case has become a narrow dispute over the detainees’ refusal to accept offers of transfers.

The new brief was filed in Kiyemba, et al., v. Obama (10-775), a case informally known as “Kiyemba III,” one of seven Guantanamo cases awaiting action by the Justices. The cases as a group raise a wide range of issues on what authority federal judges retain to control the legal fate of detainees who have been held, in some cases, for nine years. The five Uighurs were cleared some time ago for release, but that has not occurred.

Their fate apparently depends now upon how the Court views their latest appeal. Perhaps more than in the other pending Guantanamo cases, Kiyemba III represents a stark contrast in what the two sides are saying is actually at stake. If the Justices view the dispute at this stage as a major test of judicial power over detainees, the chances would seem to increase for the Court to take on the case, as it did in October 2009. If, however, they see it as only a feud over the specific terms of potential release of only five detainees, with their actual fate in their own hands, that would sharply diminish chances of review.

The Uighurs’ lawyers have made a strenuous effort to persuade the Justices that their case is an ultimate test of whether federal judges are ever going to have the power to order detainees released as a practical matter. This, they have contended, is nothing less than a test of whether the Supreme Court meant in its 2008 decision in Boumediene v. Bush that actual release had to remain as an option, once a detainee was found no longer to be a threat to U.S. security. But actual release has been thwarted by the D.C. Circuit Court, in sharply diminishing judges’ power in Guantanamo habeas cases, their lawyers have contended.

But the Administration has attempted just as stenuously to show that this case is a unique and narrow one, and that the Uighurs’ refusal “to accept all appropriate offers of resettlement they have received” has taken away any significance that it might have had for the law of detention. In the new brief in opposition to the Uighurs’ latest petition, the Justice Department argued that “this case does not raise far-reaching questions regarding whether a habeas court has any judicial power to direct a prisoner’s release.”

All that is at issue now, it added, is whether the five Uighurs “are entitled to be brought into the United States and released,” when the government has agreed not to send them home to China where they fear repression or death, and has in fact managed to make arrangements for them to be sent to a third country, only to have that remedy go unaccepted by the refusal of the detainees to accept such resettlement offers. Their plea to be released to live in the U.S. was prompted by the previous situation that no third countries were then available for resettlement, the brief said. But that is no longer the case, with at least two countries showing a willingness to accept them. But, lacking their consent, those transfers cannot take place.

The Uighurs, the brief said, “can no longer claim that there has been no” remedy for their habeas challenge to prolonged detention at Guantanamo. They thus have now switched arguments, the Department said, and are now contending that they have the right to enter the U.S., but based on the new rationale that, having won their habeas challenge, they are entitled to actual release. The Court had previously agreed to hear the first rationale, when there did not appear to be a remedy other than transfer to the U.S., but the new argument fails in the face of their actual prospects for release, if only they would accept, the brief argued.

Contrary to the Uighurs’ lawyers’ argument that judges have lost authority to make release happen, the Department document said, the government has been obeying release orders issued by a number of judges by working out resettlement to other countries, and actually getting all detainees who have been cleared for release — except for the five Uighurs — moved from Guantanamo. “The writ of habeas corpus has been proven effective at Guantanamo Bay,” it asserted.

Whatever reasoning the Uighurs’ counsel seeks to apply to gain their release now, according to the Department, they have no right under any existing law to enter the U.S., because control over the entry of any alien into the U.S. from abroad is determined by U.S. immigration law, and Congress has made it clear that those laws cannot be used to force the government to move Guantanamo detainees to live in the U.S.

The brief added that the case raises no issues about constitutional rights of detainees at Guantanamo, because there simply is no right under either the Constitution or federal law for an alien to enter the U.S., whether that would be attempted under orders from a court, or otherwise. All that Guantanamo detainees can claim, it said, is a right to seek a habeas release order and those that have done so successfully — except for the Uighurs — have gotten what they sought: actual release.

After the Court had agreed to hear the Uighurs’ appeal previously, the case was going forward toward a ruling, when the government obtained offers from at least two countries to accept some of the Uighurs as new settlers. The Court then opted to send the case back to the D.C. Circuit to assess the significance of those offers. The Circuit Court reaffirmed its earlier ruling that the Uighurs had no right to enter the U.S., and concluded that, in fact, there was not even any need to gather new facts, because new facts could not create such a right of entry. The case now is back at the Court with the new petition by the Uighurs. The Court is expected to act on it within the next few weeks.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

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